LetsRun.com

“RULE 45”: Is LaShawn
Merritt Banned from the London 2012 Olympics?

by: Matt Lane
October 21, 2010

Editor's note: Matt
Lane an 11-time All-American at William & Mary who was 4th at the 2000 and 2004 Olympic Trials at 5k is an attorney who practices Sports Law at Preti, Flaherty, Beliveau &
Pachios in Portland, Maine and Boston.He competed for Nike and the Nike Farm Team
until 2006. We're grateful he wants to share his knowledge of sports law with the LetsRun.com faithful.

Under the decision released by the American
Arbitration Association (the North American Court of Arbitration for Sport) on
Monday, LaShawn Merritt will not compete again until July 2011.Following the decision that resulted in a
21-month period of ineligibility for Merritt, debate has centered around what will happen to Merritt in 2012.On Tuesday, the IOC clearly indicated that
Merritt would not be eligible for the London Olympic Games under IOC rules.

In July, there was some discussion
on “the Boards” about an IOC rule that banned from the next edition of the Olympic
Games any athlete who received a suspension of more than 6 months.The discussion quickly revealed that this
rule was misunderstood and elusive for anyone
interested in finding or reading it.

Much has been made about so-called “Rule 45.”[1]In June 2008, the IOC Executive Board sent a
letter signed by IOC President Jacques Rogge to the National Olympic
Committees, including the USOC, regarding participation in the Olympic Games
that included the following:

[a]ny person who has been
sanctioned with a suspension of more than six months by any anti-doping
organization for any violation of any anti-doping regulations may not
participate, in any capacity, in the next edition of the Games of the Olympiad
and of the Winter Olympic Games following the date of expiry of such suspension.

On its face, “Rule 45” is
clear.An athlete, like Merritt, will be
ineligible for the Olympic Games in 2012.However, many believe that this “rule” contravenes the World Anti-Doping
Code.As a signatory, the IOC has the legal
obligation to conform with the Code which makes clear
that a signatory cannot add rules that change the Code’s effect.

The arbitration panel in Merritt’s
case agreed.In its decision, the panel
discussed the validity of the IOC’s “Unpublished Memo.”In its decision, the panel notes that the
Code grants authority for the panel to decide the “appropriate consequences”
for anti-doping violations.“The
Unpublished Memo imposes a ‘Consequence.’Pursuant to the Code, this Panel has the authority and jurisdiction to
determine whether that ‘Consequence’ is appropriate.”The panel found that application of “Rule 45”
to Merritt, after the expiration of his 21-month sanction, would be “an
additional penalty . . . [and] not an appropriate consequence under the Code."

Despite appearances, this decision
does not invalidate “Rule 45” because the IOC was not a party to the case.The IOC was invited to participate, but it
declined. The IOC was also not a party in Jessica Hardy’s case that was decided
in May (editor's note: Jessica Hardy was a swimmer banned from the Olympics), another case that may very well implicate “Rule 45” in 2012.[2]Until the rule is properly challenged, the
IOC’s statement from Tuesday, that the rule “is still valid and applies to all
athletes,” remains true.As regards the
IOC, the Merritt and Hardy decisions are merely advisory[3] .
. . for now.

Any formal
challenge to “Rule 45” will likely come in the weeks leading up to the 2012
Olympic Games.Most likely, Merritt will
be one of the USA’s best 400m runners in 2012.A challenge to “Rule 45” would almost surely arise if Merritt were to
make the Olympic Team, have his name submitted by the USOC, and then be
declared ineligible by the IOC.In
addition, if Merritt were named to the Olympic Team, another athlete could bring
an arbitration seeking to enforce “Rule 45” and prevent Merritt or any other
athlete subject to “Rule 45” from taking up a spot on the team.[4]

Despite indications
in many CAS decisions that “Rule 45” is invalid, and that the IOC, as a
signatory to the World Anti-Doping Code, cannot issue such additional
punishments, the issuance of “Rule 45” may be a win-win for the IOC.The reality is that many
view “Rule 45” as a positive step in the direction of clean competition.Through “Rule 45,” the IOC has taken a tough
stance on doping violations.It is up to
others to tell the IOC—and many in the general public—that this stance is
illegal.Regardless of the outcome, the IOC
can stand on its attempt to provide a substantial deterrent and to seriously
punish doping offenders.

In light of the Merritt decision
and others in recent months, it is probable that, if formally challenged, “Rule
45” will be invalidated because it is an additional punishment in contravention
to the provisions of the World Anti-Doping Code.This would be the right decision.

My colleague, Paul J. Greene, Esq.,
has published an article this month in the Entertainment
and Sports Lawyer, a publication of the American Bar Association, astutely
describing the debate that currently ranges around “Rule 45.”His article, Is the International Olympic Committee Above the Law?, can be read here

Matt
Lane is an attorney who practices Sports Law at Preti, Flaherty, Beliveau &
Pachios in Portland, Maine and Boston.Matt was an 11-time
All-American at William & Mary and competed for Nike and the Nike Farm Team
until his “retirement” in 2006.His prs are: Mile 3:57.57, 5000 13:25.38, 10000 28:00.01, Marathon 2:17:32. He can
be reached at (207) 791-3262 or [email protected]More sports law news and analysis from the
Preti Sports Law Group can be found at http://pretisportslaw.blogspot.com/.

[1] The
“rule” is not in the Olympic Charter or the World Anti-Doping Code, but earned
its colloquial name because it was issued pursuant to Rule 45 of the Olympic
Charter.

See Section 3.6 on page 28 in which the IOC’s possible
participation is discussed in detail.

[3] Two
advisory opinions relevant to the “Rule 45” debate are discussed in the Merritt
decision.In the IOC Advisory Opinion, a
CAS panel found “Rule 45” valid because it was not a sanction rule, but an
entry rule.However, in the IAAF
advisory opinion, a different CAS panel found that a similar rule prohibiting
participation in the European Championships was invalid and was indeed a
penalty rule, not an entry rule.The
Merritt panel noted that any argument that “Rule 45” is not a punishment is
“mere skulduggery.”

[4] The
author notes his considerable experience with the anguish of a 4th
place Olympic Trials finish having done so at 5,000 meters in 2000 and
2004.